Super Lawyers Facts

Special Master Report on Opinion 39 Is Welcome Addition

Retired New Jersey Appellate Division Judge Robert Fall has released his long-awaited report on Opinion 39, the 2006 ruling by the Committee on Attorney Advertising that prohibited attorney participation in listings such as Super Lawyers. Judge Fall’s report, produced at the request of the New Jersey Supreme Court and fifteen months in the making, contains much that was worth waiting for:

• It is good news for consumers and others looking for valuable information about lawyers;
• It’s good news for attorneys wishing to exercise their constitutional right to commercial free speech;
• And, it’s good news for everyone in the media concerned about our right to publish editorial opinion regarding lawyers who provide exceptional service to their clients.

Judge Fall did an excellent job of distilling eight days of testimony and 1,800 pages of documents. The result is a 304-page report that provides a thorough and comprehensive history of attorney advertising, a survey of current practices in various jurisdictions and a detailed discussion of the application of New Jersey's rules of professional conduct to surveys and other marketing practices. The report, like the hearings Judge Fall conducted in preparation for this report, is a powerful example of the jurist’s fair and meticulous approach to the issue.

The complete report is well worth reading, but for those interested in the executive summary, Judge Fall found much to praise about the Super Lawyer process, noting for example that our selection procedures are "very sophisticated, comprehensive and complex."   Similarly, Judge Fall notes with favor our system of checks and balances, our database and system safeguards and the various steps we take in assessing the qualifications and good standing of the lawyers on our list.

By contrast, there’s little praise for Opinion 39 or its underlying theories. To the contrary, Judge Fall devotes more than 100 pages of his report to a discussion of Supreme Court decisions regarding the constitutional right of lawyers to advertise, and the responsibility imposed on states in regulating free speech.

Overall, the report is an eloquent reminder that Opinion 39 is a constitutional outlier and is completely out of step with the rest of the country. With the full weight of Judge Fall’s report to inform it, we are confident that the New Jersey Supreme Court will protect both its lawyers’ right to commercial free speech, and our right as independent journalists to non-commercial free speech. The Court has yet to indicate when it will take up the matter, but thanks to Judge Fall, the ground has certainly been well-prepared for that possibility.

- Bill

New Connecticut Advisory Opinions

The Connecticut Statewide Grievance Committee issued two advisory opinions regarding the Super Lawyers publication this week. You can find them here.

The first thing that Connecticut attorneys should know is that we have fully responded to the Committee’s request for additional information regarding the selection process.  On our website at www.superlawyers.com, we include the additional empirical information about the Super Lawyers selection process requested by the committee, and our magazine will include a reference to this information.  We also have updated our website to remove language that the Committee found to be “misleading.”

The Committee has informed us that these changes are acceptable; see the letter from the Statewide Governmence Committee to our attorney. 

A couple other points:

• Super Lawyers is dedicated to providing attorneys and sophisticated consumers an independent, credible resource for use in selecting an attorney.
• We fully agree with the Committee’s view that attorneys should not refer to themselves as “super lawyers.” We have, and will continue to, advise attorneys they should instead indicate: “they were named or selected to the Connecticut Super Lawyers list as published by Law & Politics and Connecticut Magazine.”
• We believe the Committee’s disclaimer requirement, if applied equally and consistently, will extend far beyond Super Lawyers, and will have a dampening effect on the free flow of qualitative information to Connecticut consumers. Such restrictions place an undue burden on the consumer’s right to know, and an attorney’s right to communicate his or her professional philosophy, talent and achievements.

Martindale-Hubbell Sees Threat in Opinion 39

LexisNexis Martindale-Hubbell has submitted a motion to intervene in the New Jersey Supreme Court proceedings relating to Opinion 39 that restricts attorney advertising. Their brief is attached here.  Martindale Hubbell's brief is aimed at correcting alleged errors on how its Peer Review Ratings system has been characterized in briefs by Best Lawyers and Super Lawyers. Moreover, Martindale Hubbell seeks to participate in oral arguments or other hearings required by the New Jersey Supreme Court and have input into rule-making that may result from the court's review of Opinion 39.

The potential addition of Martindale-Hubbell highlights the fact that Opinion 39's restrictive approach to commercial speech by attorneys has potentially far-reaching effects on a wide range of activities. Martindale-Hubbell states that:

"Martindale-Hubbell has an interest in the outcome of this Court's review of Opinion 39 as it likely will impact Martindale-Hubbell's right to continue its Peer Review Rating system. Though Opinion 39 approved of Martindale-Hubbell's current Rating system, Martindale-Hubbell seeks to protect its interest and rights to expand or modify its Rating system. Second, this Court's review of Opinion 39 may impede or impair Martindale-Hubbell's interest by limiting its flexibility to change the services it provides and manner in which it markets these services, and locking it into its current Rating system."

The Martindale-Hubbell brief later states:

"The Petition for Review of Opinion 39 raises important constitutional issues. A per se ban of participation in and use of certain peer review rating systems potentially infringes on the legal community and consumers of a useful means to refer and select counsel."

For our part, we believe our brief accurately portrays the Martindale-Hubbell attorney rating publications, as well as its related policies and procedures.

Click here to read the Martindale-Hubble brief, and, as always, feel free to email me at bwhite@lawandpolitics.com.

Super Lawyers Response to New Jersey AG Opposition Brief

Today, we filed our response to the New Jersey Attorney General’s Opposition brief, filed back in November.  Click here to download our legal brief. 

As part of our response to the Committee’s opinion, we retained one of the nation’s leading market research and consulting firm Global Strategies Group (GSG) to conduct an independent assessment of our methodology.  They concluded that our process is scientific and objective.  They state:

“…the process adopted by Super Lawyers to identify and select its nominees is as scientific and objective as any such model of a complex system could be.  In its particulars – the broad range of sources used to obtain a large and representative nominee pool, the comprehensive data search on each candidate, the protocols used to evaluate nominees, the expert panel system, and the meticulous checks and balances built into the process – it leaves little to chance or idiosyncratic influence.

In our brief, we argue that lawyers have a constitutionally protected right to advertise a Super Lawyers designation, and that the New Jersey Committee on Attorney Advertising is wrong in asserting that advertising a Super Lawyers listing is inherently misleading.

At this point, the timing of what happens next is up to the Supreme Court and on that point, my crystal ball is no better than yours.  As always, we welcome your questions and comments.  Feel free to email me at bwhite@lawandpolitics.com

UPDATE 12/20/2006: We now have added the briefs filed by the other parties affected by Opinion 39, Best Lawyers and New Jersey Monthly, which raise many of the same points we made in our brief.  

NJ Attorney General Files Opposition Brief

The New Jersey Attorney General has filed its Brief In Opposition To Our Petition. It is disappointing that despite having access to the details of our Petition, the Attorney General continues to misstate the Super Lawyers selection process, as well as details of our publications, policies and procedures.

We respectfully disagree with all of the positions taken by the Attorney General in the Opposition Brief, and our attorneys will file a formal response in the next few days.

In the meantime, the stay granted by the New Jersey Supreme Court continues in force.

The AG's Brief unfortunately propagates the CAA's elitist perspective reflected in Opinion 39 (peer review) and Opinion 33 (testimonials)...that consumers are too stupid to understand what lawyers do, and too imprudent to make wise, informed decisions in selecting a lawyer. Worse, the AG has taken the position consumers are so naive they must be shielded from the most rigorous and thorough peer review process imaginable -- that even when experts are prepared to give them critical information about an attorney's reputation, consumers should not be allowed to assess the information because someone may incorrectly believe it is an absolute guarantee of quality or success.